ORCP 69 B governs the entry of a default judgment. ORCP 69 B(2)
requires a plaintiff to submit an affidavit concerning the amount of damages. The trial
court has discretion to conduct a hearing "to determine the amount of damages." Id.
ORCP 69 B(3) requires that the judgment "shall be for the amount due as shown by the
affidavit." However, the trial court "may determine the truth of any matter upon
affidavits," ORCP 69 B(2), and thus the trial court is not required to enter the amount
requested in the affidavit if it determines that "the amount due as shown by the affidavit,"
ORCP 69 B(3), is not correct.

Plaintiff's prayer requested punitive damages of $3,000--$1,000 on each of
the three claims. Plaintiff was not entitled to recover any punitive damages because he
failed to comply with ORS 18.535(2), which provides that, "[a]t the time of filing a
pleading with the court, the pleading may not contain a request for an award of punitive
damages." In order to allege punitive damages, plaintiff would have had to move for an
order allowing the filing of an amended complaint. Such a motion requires affidavits and
documentation supporting the claim for punitive damages. ORS 18.535(2). The trial
court was correct in not awarding plaintiff any amount for punitive damages.

Plaintiff's prayer requested noneconomnic damages of $3,000--$1,000 on
each of the three claims. Plaintiff was not entitled to recover noneconomic damages on
his breach of contract claim because noneconomic damages are generally not recoverable
on a breach of contract claim. Keltner v. Washington County, 310 Or 499, 504, 800 P2d
752 (1990).

Each of the remaining claims, harassment and negligence, alleges
noneconomic damages of $1,000. The trial court could have treated plaintiff's prayer as
seeking duplicate damages and could have concluded that plaintiff's total noneconomic
damages did not exceed $1,000. Neither the complaint nor the affidavits explained why
plaintiff was entitled to $1,000 in noneconomic damages. Plaintiff failed to give the trial
court sufficient information establishing the amount of damages. Plaintiff did not request
a hearing before the trial court. Without a request for findings of fact, the trial court
could have determined that $500 adequately compensated plaintiff for his noneconomic
damages. The trial court did not err.

Affirmed.

Edmonds, P. J., concurring.

In general, this case involves circumstances where the trial court, acting sua
sponte and without first notifying plaintiff, awarded plaintiff lesser damages than the
amount he claimed in his affidavit in support of his application for a default judgment.
There are at least three implications that appear from the majority's opinion based on
those facts: (1) a trial court is authorized to enter an amount different from that requested
in an affidavit made in support of a motion for a default judgment if it determines that the
amount as shown by the affidavit is not correct, __ Or App __ (slip op at 2); (2) plaintiff
failed to give the trial court sufficient information to establish the amount of damages, __
Or App __ (slip op at 3); and (3) plaintiff did not request a hearing before the trial court,
___ Or App at ___ (slip op at 3). For the reasons that follow, I would hold only that
plaintiff invited the error of which he complains.

Because there is disagreement between me and my colleagues about the
issue framed by plaintiff's first assignment of error, I begin by explaining my
understanding of plaintiff's brief. The first question presented in plaintiff's brief is as
follows: "Does a Judge have the right to greatly and unjustly reduce the relief sought for
by the Plaintiff when Defendant failed to appear, for want thereof, and had no concern or
regard for the amount that would be lost by their failure to appear and defend?" When
stripped to its essential words, I perceive the question presented by plaintiff to be:
Whether, in plaintiff's absence and without notice to him, the trial court was authorized to
reduce the amount of damages sought by plaintiff when defendant failed to appear and
was in default?

When the record is considered with plaintiff's brief, I understand him to
assign error to the court's ruling on December 23 when it signed the judgment reducing
the requested amount of damages to $500. There is no indication in the record that the
trial court put plaintiff on notice of its intention to reduce the amount of damages asserted
in his affidavit or that it furnished him an opportunity to be heard before it signed the
judgment reducing the amount of damages. One issue then, as framed by plaintiff's brief,
is whether the trial court's action under the above circumstances was authorized by ORCP
69.

To the extent that the majority's opinion reaches the merits of plaintiff's
argument, the implicit assertion that a trial court is authorized by ORCP 69 to reduce sua
sponte the amount of damages from the amount sought in an affidavit in support of a
motion for a default judgment without notification to the plaintiff or without giving the
plaintiff an opportunity to be heard deserves further comment. ORCP 69 B governs the
entry of default judgments, and Subsections B(1), B(2) and B(3) are relevant to the above
issue. Subsection B(1) authorizes entry of default judgments by the court clerk or the
court on written application of the party seeking judgment when the action arises on
contract or the claim is for the recovery of a sum certain or for a sum that can, by
computation, be made certain. Under those circumstances, judgment shall be entered
when, along with other requirements, "[t]he party seeking judgment submits an affidavit
of the amount due[.]" ORCP 69 B(1)(e).

In contrast to ORCP 69 B(1), Subsection B(2) authorizes the entry of
default judgments by the court "[i]n cases other than those cases described in subsection
(1) * * *." In pertinent part, Subsection B(2) provides:

"If, in order to enable the court to enter judgment or to carry it into effect, it
is necessary to take an account or to determine the amount of damages or to
establish the truth of any averment by evidence or to make an investigation
of any other matter, the court may conduct such hearing, or make an order
of reference, or order that issues be tried by a jury, as it deems necessary
and proper. The court may determine the truth of any matter upon
affidavits."

Under Subsection B(2), the use of the word "may" suggests that the grant of an
evidentiary hearing is discretionary with the court. However in contrast to the language
of ORCP 69 B(2), ORCP 69 B(3), which governs the entry of the amount of judgment,
provides that "[t]he judgment entered shall be for the amount due as shown by the
affidavit[.]" (Emphasis added.) The mandatory "shall" language of subsection B(3)
obligates the trial court to award the amount of damages as shown by the affidavit and
appears to impose a boundary on the court's discretion. Thus, a tenable reading of the two
sections together, of which trial courts should be cognizant, is that, while the holding of
an evidentiary hearing or the requiring of additional affidavits is discretionary, a trial
court cannot disregard the evidence from an uncontroverted affidavit without giving the
party an opportunity to be heard.